The U.S. Supreme Court agreed Thursday to decide who can legally draw Arizona’s congressional districts.
In a brief order, the justices said they will consider arguments by legislative leaders that the U.S. Constitution allows these boundaries to be drawn only by the majority of the 30 members of the Senate and 60 state representatives. The lawmakers want the high court to void part of a 2000 voter-approved law which gave that power to a separate Independent Redistricting Commission.
A hearing could occur as early as January.
There are profound political implications for Arizona if the court agrees. Most immediately, it would void the maps for the state’s nine congressional districts that the commission created.
But the real repercussions would occur if the court hands that responsibility back to the Legislature.
That would free the Republican majority to redraw the lines for the 2016 election and beyond in ways more favorable to GOP candidates. And that likely would mean the political makeup of the state’s congressional delegation, currently split 5-4 between Democrats and Republicans, would shift, perhaps sharply.
The fight turns on the Elections Clause of the U.S. Constitution which says that the “times, places and manner” of electing members of Congress “shall be prescribed in each state by the Legislature thereof.”
That’s the way it occurred in Arizona prior to 2000. It was also a process that often resulted in districts designed to give an advantage to the majority party.
That year, however, year voters amended the state Constitution to create the five-member commission, charging it with drawing both legislative and congressional lines. The new commission then crafted lines for the coming decade.
As required by law, new districts were drawn following the 2010 census and the state got another seat in the U.S. House. It was only then that Republican legislative leaders expressed concern – and filed suit – when the lines were drawn in a way that eventually gave Democrats five of the nine seats.
A majority of a three-judge panel rejected the challenge, saying Arizona voters were within their rights. That sent the case to the high court.
Commission attorney Mary O’Grady acknowledged the federal constitutional language. But she said Thursday it doesn’t mean what lawmakers contend.
“‘The Legislature’ in this context, in the Elections Clause, is referring to the lawmaking process of the state,” she said.
“It’s not dictating how that lawmaking process ought to be exercised,” O’Grady continued. “It’s just referring to whatever the lawmaking process of the state is.”
And in this case, she said, the Arizona Constitution specifically authorizes voters to write their own laws through the initiative process, which is exactly how the commission was created in the first place.
“That’s a wholly specious argument,” responded Senate President Andy Biggs. “It makes me giggle.”
He wants the justices to conclude that the word “Legislature” means exactly what it suggests.
“Both the state and the federal constitutions say that every state shall have a republican form of government,” Biggs said.
“That means it’s not a direct democracy,” he continued. “That means that we don’t vote on every issue.”
He conceded that the Arizona Constitution does permit voters to exercise legislative powers.
“In fact, Arizona has more direct democracy than most states,” Biggs said. But he said that does not make the people of Arizona into “the Legislature,” a term he said is defined in the state Constitution as “the bicameral (body) consisting of the House and Senate, elected by the people to be their elected representatives in the Legislature.”
In issuing their order Thursday, the justices gave themselves a way out of the whole legal argument. They said they first want to decide whether lawmakers have has the right to ask them to essentially void a provision of the state Constitution because it trimmed their political power.
“There’s lots of case law that says that’s not really the kind of injury that gives standing to file suit,” O’Grady said.
Thursday’s action by the Supreme Court does not affect a separate lawsuit challenging the lines the commission drew for the state’s 30 legislative districts, one which the high court has not yet decided whether it will review.
In that case, however, the challengers do not dispute the commission can draw legislative districts. Instead, they dispute how those districts were drawn.
Challengers contend commission members acted improperly when they intentionally “packed” non-Hispanic Republicans into some districts. That meant remaining districts had a higher proportion of Democrats, giving candidates from that party a better chance of getting elected.
Attorney Thor Hearne said what makes that illegal is not the partisan motives but hot it was done. He said the commission ignored state constitutional requirements that it create districts of equal population. Using 2010 census figures, each district should have about 213,000 residents. But the commission, by its own admission, had districts ranging from 203,026 to 220,157.
The majority of a three-judge panel rejected the challenge, concluding the U.S. Constitution does not require that legislative districts have precisely equal population.
Instead, the judge said, there can be “divergencies” that are necessary to achieve other goals. And in this case, they said, that the commission’s decision to manipulate the lines was primarily to comply with requirements of the Voting Rights Act to not dilute minority voting strength and not to give Democrats a political leg-up.
But Judge Neil Wake, in his dissent, disagreed, saying “it does not take a Ph.D. to see this stark fact of intended party benefit.”